Article V of the US Constituion offers the United States two ways to change the Constitution.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress…

Now as one long fascinated by the operation of the Constitutional Convention of 1787 and the various constitutional conventions of the several states since that time, I’m intrigued by the possibility of such a convention. Indeed, I appear to not be alone, as a number of states have petitioned Congress for such a convention, and popular sentiment for reform of the federal government make it likely that calls for wholesale revision of the US Constitution may be unavoidable. But is it a good idea? That is part of what Ashby Jones explores over at WSJ’s Law Blog. Jones seems to be an agnostic on the matter, while citing writers on both sides of the issue.

On the positive side, such a convention would have the effect of getting needed structural changes made to a document that has been around for over two centuries in an age where partisan factionalism in Congress makes the passage of all but an innocuous (and therefore unneeded) amendment impossible. A Constitutional Convention, then would arguably have the ability to propose amendments for consideration by the states that would not otherwise have gotten out of the House and Senate. For example, there is little likelihood of an amendment restricting the Commerce Clause or eminent domain ever reaching the states. The same would be true of a balanced budget amendment or one overturning the Seventeenth Amendment. And while one could debate the wisdom or efficacy of any of these proposals, there is a substantial body of the people who think that just such reforms might be worth debating and considering for inclusion in the Constitution.

On the other hand, there are some negatives that go with this sort of move. Consider these issues raised in a comment on Jones’ piece.

1) Who gets to appoint delegates?
2) What criteria will be used to appoint them?>br> 3) Why is it assumed that delegatons will be chosen by the states? Article V makes no such specification.
4) Just like the first Con Con, there is already a plan waiting in the wings- the Newstates Constitution; It is a nightmare of assumption of federal power and elimination of state governments.
5) Why not just repeal the 17th amendment and give state governments the representation they had in the national legislature before 1913?
6) What makes everyone assume the ratification procedure will protect things from going too far? The ratification procedure for the Articles of Confederation were bypassed in ratifying the Constitution of 1787.
7) Why would anyone believe that a “controlled” convention called “only to amend the Constitution not change it completely” in light of the history of the first Con Con which was called expressly to amend and only to amend the commerce portion of the Articles of Confederation?
8) How would a “limited” convention be controlled? Former Chief Justice Warren Burger made it clear that once called a Con Con was completely in the hands of delegates who can do what they please as they did in 1787, including violating their chartered limits of authority.

Some of the issues here are rather daunting from a practical and/or historical point of view. I do not recall where I saw or heard it, but some commentator suggested that in a “worst of all worlds scenario”, Pelosi and Reid could simply corral a simple majority of each house of Congress into passing a resolution declaring a joint session of Congress to be the required convention. In such an instance, would the amendments which came from that convention really reflect the will of the states or the people? And given the historical precedent set in 1787 and 1788 (what I have, while teaching my college-level government class, referred to as “America’s first coup d’etat”), it would be quite possible for such a convention to circumvent the requirements of Article V in terms of the means and method of ratification.

However, I do not believe that the people would stand for such a subterfuge – especially in the current political environment. After all, 2010 is not 1787. Rather than an unstable confederation of independent states with no effective central government, we have a long-established tradition of government that includes general respect for the existing terms of the Constitution. Similarly, an appropriately written call might allow for immediate consideration of any action by the convention to determine whether such actions are valid under its charter and the Constitution itself. And while George Washington and the rest might have been able to shut the doors and windows of Independence Hall in 1787, American practice and tradition regarding open government is such that the American people would not stand for any closed-door shenanigans of that sort, nor would the evolution of media and technology over the last two-and-a-quarter centuries allow for the sort of vow of secrecy that the delegates in 1787 made – in an age of instant internet access, the secrecy would be unlikely to survive.

What of the possibility that “extreme amendments” might come out of the convention – requiring school prayer, or mandating racial quotas in education and government contracting? That is where we would have to trust that the states (or their conventions) would reject anything unwise. I consider the repeal of the First Amendment – often a bugaboo of convention opponents – to be unlikely.

In the end, I understand the concerns expressed by Chief Justice Burger in his letter to Phyllis Schlafly, when he warned that [a] new convention could plunge our Nation into constitutional confusion and confrontation at every turn, with no assurance that focus would be on the subjects needing attention. That said, I believe that the dangers are overstated, and the wisdom of the legislatures of the several states is such that any unwise proposal would be rejected out of hand. For that reason, I lean strongly towards an Article V convention.